Given that Zarate was a felon with a gun in his hands when he killed Steinle, I’m perplexed he wasn’t convicted for felony murder.

I am as appalled as anyone else that Kate Steinle’s killer, Jose Inez Garcia Zarate, a man who was on his fifth or sixth illegal entry into the United States, walked out of the San Francisco courtroom a free man. I’m also confused, because California has a felony murder law on the books.

As a general rule, you cannot be convicted of murder if you kill someone by accident or even through extreme carelessness. Murder is an intentional act.

The one exception is felony murder. This holds that a person committing a felonious act causes someone’s death, even if the act of killing was accidental, has committed murder. There are wrinkles to the law, with the relevant one in this case being the requirement that the underlying felony has to be inherently dangerous(e.g., grand theft auto or robbery). As this excellent legal analysis shows, a defendant can avoid a felony murder charge by proving that he was not committing an inherently dangerous felony.

In the case of Zarate, he was definitely in a permanently felonious state. That is so because repeatedly entering the U.S. after repeatedly getting deported is a felony. His mere presence was a felony.

Of course, if I were Zarate’s attorney, I would try to blog a felony murder charge by arguing that repeated illegal entry, while felonious, is not inherently dangerous. True, but… [Read more…]